Southern Ry. Co. v. Groover
| Decision Date | 19 July 1930 |
| Docket Number | 20093. |
| Parties | SOUTHERN RY. CO. v. GROOVER. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 6, 1930.
Syllabus by Editorial Staff.
Requested instruction substantially given in charge of court held properly refused.
Charge in action for personal injury that, if jury found for plaintiff, they might also find some amount for pain, was not erroneous as expressing opinion that plaintiff ought to recover for pain (Civ. Code 1910, § 4863).
Instruction on plaintiff's right to recover damages from diminution of his earning capacity held authorized by evidence.
Testimony disclosed that injuries suffered by plaintiff and fully described were, in part, permanent, and that earning capacity had been permanently reduced, and there was evidence as to plaintiff's daily earning capacity and earning before injury, and kinds of work in which he had engaged.
Jury may increase damages for tort by including equivalent of interest as part of damages, where there is fixed rule for measuring damages, but not where damages are discretionary or punitive.
Damages are "discretionary" when measureable by enlightened conscience of impartial jurors.
Sums ascertainable only by enlightened conscience of impartial jurors do not bear interest before verdict, either as interest or damages, with or without discretionary allowance by jury.
Charge permitting jury to consider interest in determining damages which could have included sum for pain and suffering held erroneous.
Where error in allowing interest could not have increased plaintiff's recovery more than certain sum, judgment will be affirmed, on condition that plaintiff remit such sum.
Error from Superior Court, Whitfield County; C. C. Pittman, Judge.
Action by G. L. Groover against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed on condition.
Maddox, Sapp & Maddox, of Dalton, for plaintiff in error.
Mann & Mann, Wm. E. Mann, and W. Gordon Mann, all of Dalton, for defendant in error.
Syllabus OPINION.
1. The evidence authorized the verdict.
2. The instruction embodied in the defendant's request to charge was substantially given in the charge of the court. McKie v. State, 165 Ga. 210 (6), 140 S.E. 625; Georgia Ry. & Power Co. v. Head, 155 Ga. 337 (5), 116 S.E. 620.
3. In a suit to recover for damage to the plaintiff's automobile, and for a personal injury to himself resulting in reduced earning capacity, and for pain and suffering, an instruction that if the jury found for the plaintiff, they "might also find some amount for pain and suffering," contained no expression of OPINION that the plaintiff ought to recover for ""pain and suffering," and hence did not tend to violate the provisions of section 4863 of the Civil Code 1910.
4. Where the trial occurred more than a year after the plaintiff's injury, and the nature and character of the injury and his then present condition were fully described, with testimony that his injuries were, in part, permanent, and that his earning capacity had been permanently reduced, and where there was evidence as to his daily earning capacity and also as to what he had earned yearly before his injury, and as to the kinds of work in which he had been engaged and was fitted for, it cannot be said that the instruction upon the question of the plaintiff's right to recover damages resulting from a diminution in his earning capacity was without any evidence whatever to warrant it. Dixon v. Cassels Co., 34 Ga.App. 478 (3), 130 S.E. 75, and cases cited. The present case is distinguished from such cases as City of Atlanta v. Jolly, 39 Ga.App. 282 (1), 146 S.E. 770; Atlantic Coast Line R. Co. v. Anderson, 35 Ga.App. 292 (4), 133 S.E. 63; Rome Ry. & Light Co. v. Duke, 26 Ga.App. 52, 105 S.E. 386; Atlanta & West Point R. Co. v. Haralson, 133 Ga. 235, 65 S.E. 437, 440; and City Council of Augusta v. Owens, 111 Ga. 464, 36 S.E. 830. Compare Southern Ry. Co. v. Reed, 40 Ga.App. 332 (8), 149 S.E. 582.
5. In an action for a tort, where there is some fixed rule for measuring the damages, the jury may, under proper circumstances, increase the amount by including the equivalent of interest as a part of the damages sustained. Central Railroad v. Sears, 66 Ga. 499; Western & Atlantic R. Co. v. McCauley, 68 Ga. 818; Gress Lumber Co. v. Coody, 104 Ga. 611, 30 S.E. 810; Maryland Casualty Co....
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